Friday, 23 August 2019

A Matter Of Time: Navigating Employer Obligations To Accommodate An Ageing Workforce

In Australia, there is a skilled, motivated and growing segment of the workforce comprised of workers over 50 years of age. This pool of employees can provide real value to modern workplaces, but they can also present unique challenges, including risks to health and safety (particularly in physical roles), and risks of workers’ compensation claims or claims of age discrimination. However, these challenges can be easier to navigate if employers put in place the following measures.

  1. Pre-Employment Assessments

One key risk arises where employers assume that an older worker cannot perform a role because of their age, and therefore choose not to hire them based on this assumption without definitive evidence that this the case.

To avoid this, employers can implement pre-employment processes directed at ascertaining a prospective employee’s fitness for work and ability to fulfil the inherent requirements of the role. This process is not only applicable to the ageing workforce; it is good practice regardless of the candidate’s age.

Prospective employees should be asked to review a description of the inherent requirements of the position, and disclose whether they have any pre-existing injuries or conditions which may impact their ability to fulfil those requirements safely. If the worker makes any concerning disclosures, it may be appropriate to have them independently assessed.

This will not only ensure the employer is meeting safety obligations, but will also arm them to defend against any discrimination claims should they decide not to employ the worker based on the worker’s inability to fulfil the inherent requirements of their role.

  1. Monitoring Health of Employees and Reasonable Adjustments

Taking the time to clearly scope the inherent requirements of a role (that is, the key physical and cognitive requirements) is fundamental in pre-employment processes, and also helps ensure the continued fitness for work of the workforce.

This forms a key part of an employer’s safety obligations, in monitoring the health of employees and can be particularly relevant to older workers who are working in physically demanding roles.

Where an employer has concerns that a worker may be unable to fulfil the inherent requirements of their role safely, it will be justified in having the worker assessed to ensure their fitness for work.

Having workers assessed at an early stage will assist in reducing the risk of injury. Further, where an assessment reveals the worker has a condition that is impacting their ability to perform work safely, employers have an obligation to make reasonable adjustments to enable the worker to fulfil the inherent requirements of their role.

Making such adjustments can be an effective way of maintaining the mature worker’s participation in the workforce while also ensuring safety. However, if there are no possible reasonable adjustments that could be made to enable the employee to safely fulfil the inherent requirements of their role, the employer will be justified in terminating the employee’s employment.

  1. Flexible Working Arrangements

It is often overlooked that employees over 55 years of age (and who have completed 12 months’ continuous service) have the right to request flexible working arrangements under the National Employment Standards.

Often employees who are approaching retirement are not aware of this entitlement, and therefore they transition immediately from full-time work to retirement. This abrupt change can be very confronting for the individual, and can also mean a substantial and sudden loss of institutional knowledge and experience for the employer.

Facilitating flexible working arrangements (e.g. part time employment, working from home, etc) can overcome these challenges and allow the employee to transition to retirement in a more gradual manner, whilst also providing the employer an opportunity to consider succession planning.

Take Home Messages

While there can be challenges in managing an ageing workforce, doing it well has obvious benefits for everyone concerned. Mature employees can enjoy sustained and productive participation in the workforce, and an employer can harness the experience and knowledge of these employees, while also managing legal risk.

If you would like to explore this topic and related matters further, HR Legal is conducting a Fitness For Work webinar this month on the topic of Managing Drug & Alcohol Use, Ageing Workforce and Long-Term Injured Workers and which you can register for by clicking here.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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